United States District Court, D. Hawaii
ORDER DENYING DEFENDANT'S MOTION FOR NEW
Oki Mollway United States District Judge.
this court is Defendant Matthew Berckmann's Second
Amended Motion For New Trial (“Amended Motion”).
See ECF No. 206. Following a jury trial, Berckmann
was convicted of two counts of having intentionally assaulted
his wife, Jessie Fenton. Berckmann now argues that his trial
attorneys provided ineffective assistance by failing to call
Fenton as a witness, that a juror engaged in misconduct by
failing to disclose having provided counseling on domestic
violence issues, and that the court erred at trial in
admitting evidence under Federal Rule of Evidence 404(b).
None of the grounds warrants a new trial, and the court
denies Berckmann's motion.
October 18, 2017, Berckmann was arrested in Haleakala
National Park, following an altercation with Fenton in one of
the park's campgrounds. On December 14, 2017, Berckmann
was charged with “intentionally assaulting Jessie
Fenton with a dangerous weapon, namely a knife, with intent
to do bodily harm to Jessie Fenton, ” in violation of
18 U.S.C. § 113(a)(3) (“Count 1”); and with
“intentionally assaulting Jessie Fenton, his spouse, by
strangling her, or attempting to do so, ” in violation
of 18 U.S.C. § 113(a)(8) (“Count 2”). ECF
April 18, 2018, a jury found Berckmann guilty of both counts.
See ECF No. 146. Berckmann's trial attorneys
then moved to withdraw because Berckmann had indicated that
he planned to raise ineffective assistance of counsel
arguments. See ECF No. 151, PageID #s 1380-81. The
court granted the trial attorneys' motion to withdraw,
and new counsel was appointed for Berckmann on May 18, 2018.
See ECF No. 155, PageID #s 1387-88.
unsworn statement filed on May 21, 2018, Fenton says that she
“was not pushed to the ground, strangeled [sic],
threatened with a knife, or harmed in anyway [sic] by my
husband Matthew Berckmann.” ECF No. 156, PageID # 1389.
The statement further asserts that she was willing and able
to testify at Berckmann's trial, that there was false
evidence presented at trial, that there was exculpatory
evidence not presented at trial, and that the trial attorneys
were ineffective. See id.
22, 2018, Berckmann's new counsel filed a Motion For New
Trial (“Original Motion”), which argued that
trial counsel had been ineffective by failing to call Fenton
as a witness at trial. See ECF No. 158, PageID #s
1398-99. On July 18, 2018, Berckmann filed a reply to the
Original Motion that raised new arguments, including that a
juror may have engaged in misconduct. See ECF No.
188, PageID #s 2588-89.
court held a hearing on the motion on August 6, 2018, at
which Berckmann added the argument that the court had
improperly admitted Rule 404(b) evidence. The hearing was
continued after Berckmann indicated that he wanted to call
Fenton as a witness, but could not locate her. See
ECF No. 197. The court later granted Berckmann leave to amend
his motion so that the arguments about the juror and the Rule
404(b) evidence could be properly briefed, and on August 14,
2018, he filed the present Amended Motion. See ECF
Nos. 200, 206.
continued hearing on September 10, 2018, this court heard
testimony by Sharron Rancourt, one of Berckmann's trial
attorneys. See ECF No. 215. Fenton was in the
courthouse, and at times Berckmann seemed to want to call her
to testify, but Berckmann ultimately opted not to call Fenton
as a witness. The court later allowed optional briefing on
the Rule 404(b) issue, and the parties filed supplemental
briefs on that issue on October 9, 2018. ECF Nos. 217, 218,
STANDARD UNDER RULE 33.
33(a) of the Federal Rules of Criminal Procedure provides:
“Upon the defendant's motion, the court may vacate
any judgment and grant a new trial if the interest of justice
so requires. If the case was tried without a jury, the court
may take additional testimony and enter a new
judgment.” The burden of establishing that a new trial
is warranted rests with the moving party. See United
States v. Endicott, 869 F.2d 452, 454 (9th Cir. 1989). A
motion for new trial “is directed to the discretion of
the judge” and should be granted “only in
exceptional cases in which the evidence preponderates heavily
against the verdict.” United States v.
Pimentel, 654 F.2d 538, 545 (9th Cir. 1981) (citation
omitted); accord United States v. Mack, 362 F.3d
597, 600 (9th Cir. 2004) (reviewing the denial of a motion
for new trial under Rule 33(a) under an abuse of discretion
standard). A district court's power to grant a motion for
new trial is much broader than its power to grant a motion
for judgment of acquittal, United States v. Alston,
974 F.2d 1206, 1211 (9th Cir. 1992); a new trial may be
granted when the “interest of justice so
requires.” Fed. R. Crim. P. 33(a).
33(b) provides time limits for filing a motion for new trial:
(1) Newly Discovered Evidence. Any motion for a new trial
grounded on newly discovered evidence must be filed within 3
years after the verdict or finding of guilty. If an appeal is
pending, the court may not grant a motion for a new trial
until the appellate court remands the case.
(2) Other Grounds. Any motion for a new trial grounded on any
reason other than newly discovered evidence must be filed
within 14 days after the verdict or finding of guilty.
court may consider an untimely motion for new trial if
“the failure to file it on time was the result of
excusable neglect.” Fed. R. Crim. P. 33 Advisory
Committee Notes on 2005 Amendments; Fed. R. Crim. P.
45(b)(1)(B); see also Eberhart v. United
States, 546 U.S. 12, 19 (2005) (holding that the
time limits in Rule 33 are not jurisdictional).
is seeking a new trial based on three grounds: (1)
ineffective assistance of counsel, (2) juror misconduct, and
(3) improper admission of Rule 404(b) evidence at trial.
See ECF No. 206-1, PageID #s 2724-39. His motion for
a new trial is denied.
Berckmann's Ineffective Assistance of Counsel Argument
This Court Finds Excusable Neglect in the Failure to Raise
the Ineffective Assistance of Argument Earlier.
noted earlier in this order, a motion for new trial based on
any ground other than newly discovered evidence must be filed
within 14 days of a verdict, absent excusable neglect.
See Fed. R. Crim. P. 33(b); Fed. R. Crim. P.
45(b)(1)(B); Fed. R. Crim. P. 33 Advisory Committee Notes on
2005 Amendments. Berckmann's verdict was returned on
April 18, 2018, and his Original Motion, which raised the
ineffective assistance of counsel argument, was not filed
until May 22, 2018. See ECF Nos. 146, 158.
Ineffective assistance of counsel is not considered
“newly discovered evidence.” See United
States v. Allen, 153 F.3d 1037, 1045 (9th Cir. 1998)
(“We have rejected the use of a Rule 33 motion for new
trial based on ‘newly discovered evidence'
involving the ineffective assistance of counsel.”
(quoting United States v. Pirro, 104 F.3d 297, 299
(9th Cir. 1997))). Thus, the argument that his trial
attorneys were ineffective in failing to call Fenton as a
witness is untimely raised unless this court finds excusable
determining whether there was excusable neglect, this court
considers the following factors: “(1) the danger of
prejudice to the other party, (2) the length of delay and its
potential impact on judicial proceedings, (3) the reason for
the delay, including whether it was within the reasonable
control of the movant, and (4) whether the moving party's
conduct was in good faith.” Pincay v. Andrews,
389 F.3d 853, ...